Smt. Nandita Virmani vs Raman Virmani on 19 February, 1982
2. At the very threshold we had conveyed to learned Counsel for the Petitioner our view that it would not be appropriate to exercise the extraordinary powers reposed on the Writ Court in the circumstances of this case. Mr. Issar, however, relies on Smt. Nandita Virmani v. Raman Virmani 1983 Crl. L. J. 794. We have carefully perused the Judgment but in our view it is of no assistance to the Petitioner. So far as the factual matrix was concerned, an understanding had been reached between the mother and the father in that case pertaining to visitation and custody of their minor son. It appears that the father had reneged on that understanding. The petition for Habeas Corpus was filed in those circumstances. The Division Bench, inter alia, underscored the fact that Section 6 of the Hindu Minority and Guardianship Act, 1956 (Minority Act for short) postulated that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. While drawing a distinction between guardianship and custody of a minor, the Division Bench clarified that Section 6 does not stipulate that custody of a child above the age of five years would invariably lie with the father. The Division Bench further elaborated that in custody matters it is the welfare of the child which is of pre-eminence; it would prevail over perceived individual rights of the parents. At no stage did the Division Bench opine that the jurisdiction of the Guardians and Wards Act, 1890 (Guardians Act for short) or of any matrimonial court exercising jurisdiction under respective Sections dealing with custody rights, must give way to Habeas Corpus proceedings. It is trite that wherever alternate or equally efficacious proceedings are available under statute a writ court should direct the parties to avail of such remedies.